Judgment:
Poonam Srivastav, J.
1. Heard Sri Arvind Kumar Srivastava, learned Counsel for petitioner and Sri Manish Kumar Nigam, counsel for contesting respondents.
2. Petitioner preferred a release application under Section 21(1)(a) of U.P. Act No. XIII of 1972 (hereinafter referred to as the 'Act') for release of an area shown in the application as A, B, C, and D measuring 18 x 18 feet situated in mohalla Parhpur, Gorakhpur (hereinafter referred to as disputed accommodation). The need of petitioner set up in the release application was for establishing a chamber for his son. This fact was supported by an affidavit by son himself to substantiate that he requires a separate independent chamber for conducting his professional work. The disputed accommodation was initially let out to one Lalta Prasad Shukla at rent of Rs. 150 per month, which was increased by 10% every five years.
3. The original tenant expired in December, 1996. Subsequent to his death, Shri Shyam Sunder Shukla and Shri Shyam Karan alias Shyam Narayan Shukla stepped in their father's shoe and premises continued to be in their tenancy. Release application was filed to fulfil requirement of son of landlord, which was numbered as P.A. Case No. 20 of 2002, Om Prakash Gupta v. Shri Shyam Karan alias Shyam Narayan Shukla and Ors..
4. Landlord claimed that original tenant, Lalta Prasad Shukla, used to occasionally open shop and conduct business and after his death, elder son respondent No. 1 who is working in bank, used to sit sometime and another son carried as an agent of post office. Stand was taken by the landlord that the disputed accommodation is not put to regular use and can very well be released. In fact, original release application was filed against Hari Prasad Verma as well, who was arrayed as opposite party No. 3 in the release application. He had jewellery business, which was running on loss, therefore, he started selling lottery tickets after closing his jewellery business. It was further claimed by landlord that opposite party No. 3 has another shop in the main Sarafa market, Urdu Bazar, therefore, he had no requirement. He is not a party in the present petition.
5. Landlord's case was that his son Ved Prakash Kesharwani started practice in the year 1996. He has small house for residential purpose and at present he is using a small room to suffice need of his chamber, which is insufficient for library and his file as well as also dealing with his clients in such a congested atmosphere. Landlord is also an advocate and son used to previously practice with him but now he has an independent practice and he requires a separate chamber.
6. Prescribed Authority, vide judgment and order dated 21.8.2007 allowed release application holding that need of the petitioner is bona fide and on comparison of respective hardship, balance tilts in favour of landlord. The judgment and order of Prescribed Authority was challenged by respondent Nos. 2 and 3 in Rent Appeal No. 14 of 2007, which was allowed by District Judge, Gorakhpur, vide judgment and order dated 31.1.2008.
7. On perusal of judgment of appellate court, it transpires that appellate court also confirmed findings of Prescribed Authority on the question of 'bona fide need' but recorded a conclusion that comparative hardship suffered by tenant would be more than the landlord and consequently release application was rejected, which is impugned in the instant writ petition.
8. Sri Arvind Srivastava, has advanced a number of arguments. First argument is that judgment of appellate court one being that of reversal on the question of comparative hardship but no reason was assigned why conclusion arrived at by Prescribed Authority is not correct and same was not confirmed. It is asserted by counsel for petitioner that finding on comparative hardship suffered by landlord is based on erroneous assumption. It is arbitrary and capricious, therefore, stands vitiated in law. Advocate Commissioner, who had inspected residential accommodation of landlord, has clearly given his report that accommodation in possession of landlord for residence is very small and the need of a chamber is very acute. A small room in the residential house cannot suffice the requirement of chamber.
9. Besides, it is also asserted that complete goodbye was given to the settled principle of law while declining to follow the principle that comparative hardship of tenant cannot be taken into consideration in the event it is not established that an authenticate effort was made by tenant for searching an alternative accommodation. Nothing has been brought on record in support of this contention, therefore, once appellate court was of the view that need of landlord is bona fide, it could not be refused mechanically.
10. Reliance is placed by counsel for petitioner on a decision of this Court, in the case of Kaushal Kumar Gupta v. Bishun Prasad and Ors. 2006 (1) ARC 73. Paragraph Nos. 5 and 6 of which are quoted hereinbelow:
5. In respect of comparative hardship lower appellate court held that tenant did not make any effort to search alternative accommodation. This was sufficient to tilt the balance of comparative hardship against the tenant (vide B.C. Bhutada v. G.R. Mundada : AIR 2003 SC 2713 : 2005 (2) ARC 899. The assertion of the tenant that Ram Prakash for whose need release was sought was employed in another shop, was meaningless, if a person is employed at another shop, it cannot be said that he does not require his own shop bona fidely for starting the business. Rather the experience gained as a servant on another shop would be an asset to run his own shop.
6. The finding of the trial court that the landlord could ask his son Ram Prakash to assist him in his business of repairing utensils and stove rather fantastic. It has been held by the Supreme Court in Susheela v. A.D.J. : AIR 2003 SC 780 : 2003 SCFBRC 109 : 2003 (1) ARC 256, that landlord and every adult member of his family is entitled to have separate business. The other ground taken by the Prescribed Authority was that tenant was doing his business from the shop in dispute since 1935 hence there was no justification to evict him. Mere long possession of tenant is no ground to reject the release application when bona fide need is clearly established. In this regard also reference may be made to the aforesaid authority of the Supreme Court in the case of Shushila (supra).
11. Similar view was expressed by this Court in case of Kulwant Singh (Sardar) v. Vith A.D.J., Saharanpur and Ors. 2007 (1) ARC 512. In this case, reliance was placed on decision of the Apex Court; B.C. Butada v. G.R. Mundada : AIR 2003 SC 2713. Paragraph Nos. 11 and 14 of which are quoted hereinbelow:
11. The Supreme Court in V. Radhakrishnan v. S.N.L Mudaliar AIR 1998 SC 2696 : 1998 SCFBRC 405, has held that if the release application is filed for the need of the son, then the property in occupation and use of the landlord is not relevant and cannot be taken into consideration. Similarly in A.G. Nambiar v. K. Raghavan : AIR 1998 SC 3146 : 1998 SCFBRC 359, it has been held that the other alternative accommodation available with the landlord which is not suitable for the business proposed to be established by the landlord is not relevant and cannot be taken into consideration.
14. As far as che question of comparative hardship is concerned, tenant himself pleaded that its business was of quite a large scale. It could, therefore purchase or lake on rent other accommodation. Tenant did not even make any effort in that direction. Nothing was brought on record in that regard by the tenant. The Supreme Court in B.C. Butada v. G.R. Mundada : AIR 2003 SC 2713 : 2005 (2) ARC 899, has held that after filing of release application it is utmost essential for the tenant to make efforts either to purchase or take on rent other accommodation otherwise question of hardship may be decided against the tenant.
12. I agree with the assertion of the learned Counsel and hold that it is correct nothing has been shown by tenant/respondents to substantiate that any effort was made by them to look for alternative accommodation whatsoever.
13. I have given a careful consideration to the evidence brought on record and arguments advanced by counsels for respective parties. On perusal of the two judgments, shows that it is not a question of dispute that bona fide need has been recorded in favour of landlord by the two Courts.
14. Sri M.K. Nigam, has not challenged finding on the question of bona fide need, therefore, same is not under challenge and also fact that finding on bona fide need being finding of fact, therefore, it is foregone conclusion that landlord's need set up in release application is genuine and he requires accommodation to set up his chamber. Therefore, by no stretch of imagination can it be said that there is any mala fide in the intention of landlord while preferring an application for release of accommodation under Section 21(1)(a) of the Act.
15. Only question that remains to be examined whether finding on the question of comparative hardship by appellate court is correct or not. Ground on which hardship has been held to be more that of tenants is because tenants have stated that they are of very small means and they do not have requisite fund to buy a new shop, which is very costly, or they cannot take another shop on rent since rate of rent is very high, thus they cannot shift their shop to another place. The only positive assertion in the evidence of respondent Nos. I and 2, who filed an affidavit is, that they made an attempt to obtain vacant shop but for reason stated above, they were unable to do so. Paucity of funds with the tenants alone cannot be a ground to refuse landlord to use his own accommodation when it is required so badly. House was purchased and constructed for beneficial use of landlord, previously children were minors, he did not require the disputed accommodation for an independent use, it was let out but once tenants are inducted, they are not inducted for their entire life. Previously, rate of rent was Rs. 150 per month and at present, tenants are paying rent @ Rs. 315 per month.
16. Admitted position is that they are not able to get another accommodation at this rent. It is suggested that landlord has his own residential accommodation, which he can put to good use. This cannot be accepted and landlord cannot be compelled to establish his chamber elsewhere at a higher rent only because tenants are unable to pay high rent. This can hardly be a reason to reject release application, which was allowed by Prescribed Authority. Finding on bona fide need has been recorded by the two Courts concurrently in favour of landlord. Besides, on the basis of citations referred above, bald assertion in affidavit can hardly be considered to be a genuine effort on the part of tenants to look for alternative accommodation. Tenants have not even attempted to move an application before Rent Controller for allotment of shop. It goes without saying that in the area where shop in question is situated, is the main market area and rate of rent is very high. Tenants can hardly expect to get an alternative accommodation at the rate, which they are paying to landlord in the present economic set up.
17. In view of what has been stated above, I do not agree with finding on the question of comparative hardship recorded by appellate court, same is without substance and without reasons for disagreeing with findings of Prescribed Authority. The judgment of appellate court on the face of it, appears to be perverse without any reason manifestly erroneous, therefore, liable to be quashed.
18. The judgment and order dated 31.1.2008, passed by District Judge, Gorakhpur, in Rent Appeal No. 14 of 2007, is quashed. Findings on the question of comparative hardship recorded by appellate court is set aside. Findings of Prescribed Authority, are affirmed. The writ petition is allowed.
19. In the end, Sri M.K. Nigam, counsel for respondents made a request for some time to vacate accommodation in question. This request is allowed subject to filing an undertaking within three weeks from today before the trial court stating unequivocally that vacant possession of accommodation in question shall be handed over to landlord/petitioner on or before 18.4.2010. The date for handing over possession shall be given in the undertaking in form of an affidavit as 18.4.2010. The tenants shall deposit entire decretal amount alongwith interest and they shall also continue to pay damages at the rate of Rs. 500 per month from today.
20. If tenant/respondents fail to file an undertaking within a period of three weeks from today before the trial court and pay the damages at rate of Rs. 500 from month to month by 10th of each month, this liberty shall automatically come to an end. Landlord will be at liberty to get accommodation vacated forthwith.